A zoning board of appeals (ZBA), hereinafter in this article sometimes referred to as the "board," is hereby established pursuant to the Michigan Zoning Enabling Act (Public Act 110 of 2006), as amended. The terms of the statute shall prevail, except as modified by the terms of the Code of Ordinances and the Charter which are not in direct conflict thereto.

(a)

The ZBA shall consist of five members appointed by majority vote of the members of the city council. Each member shall be appointed to hold office for a three year term. A vacancy on the ZBA shall be filled by city council for the remainder of the unexpired term in the same manner as the original appointment.

(b)

Three members shall constitute a quorum.

(c)

The city council may, if desired, appoint two alternate members for three year terms. One or both alternate members may be called by the chairman, or in the absence of the chairman by the vice-chairman, or, in the absence of the vice-chairman, by the secretary to sit as a regular member of the ZBA if a regular member is absent from or unable to attend one or more meetings. An alternate member may also be called to serve in the place of a regular member for the purpose of reaching a decision on a case in which the regular member has abstained for reasons of conflict of interest. The alternate member having been appointed shall serve in the case until a final decision has been made. While serving, the alternate member shall have the same voting rights a regular member of the ZBA.

(a)

Members of the board shall be residents of the city. One of the regular members or an alternate member of the ZBA may be a member of the city council, but that member shall not serve as chairperson of the ZBA. One of the regular members of the ZBA shall be a member of the planning commission.

(b)

An employee or contractor of the council may not serve as a member of the ZBA.

(a)

The ZBA is hereby authorized and empowered to establish its own rules of procedure and to elect its own officers subject to the provision that it shall, at its organizational meeting, elect a chairman, a vice-chairman and a secretary. In establishing rules of procedure and election of officers, a majority of those in attendance and constituting a quorum shall be required.

(b)

Prior to the ZBA making a decision in a specific case, the ZBA shall conduct a public hearing. Written notice of the hearing shall be in accordance with section 102-303, public hearings.

(c)

A concurring vote of a majority of the members of the ZBA shall be necessary to reverse an order, requirement, decision, or determination of an administrative official or body, or to decide in favor of the applicant, a matter upon which the board is required to pass under this article or other articles of the Code of Ordinances, except that a concurring vote of two-thirds of the members of the ZBA shall be necessary to grant a variance from uses of land permitted in this chapter.

(d)

A member of the ZBA who is also a member of the planning commission or the city council shall not participate in a public hearing on or vote on the same matter that the member voted on as a member of the planning commission or the city council. However, the member may consider and vote on other unrelated matters involving the same property.

The ZBA shall have all jurisdiction and powers granted by the Michigan Zoning Enabling Act (Public Act 110 of 2006), as amended, and the following specific jurisdiction and powers:

(1)

To hear and decide appeals from and review any order, requirements, permit, decision or determination made by the building official or any other administrative official or body in enforcing the provisions of this chapter. The ZBA may reverse or affirm, wholly or in part, or may modify the order, requirement, permit, decision or determination as in the ZBA's opinion ought to be made in the premises, and to that end shall have all the powers of the administrative official or body from whom the appeal is taken.

(2)

To hear and decide matters referred to it or upon which it is required to pass under any ordinance adopted pursuant to Act 207 of 1921 (MCL 125.581 et seq.), as amended, of the state, or by other articles of the Code of Ordinances.

(3)

If there are practical difficulties (for nonuse variances) or unnecessary hardship (for use variances) in the way of carrying out the strict letter of the zoning ordinance, the ZBA may grant a variance in accordance with this section, so that the spirit of the zoning ordinance is observed, public safety secured, and substantial justice done. The ZBA may impose conditions and vary or modify any of its rules, regulations or provisions relating to the construction, structural changes in, equipment, or alteration of buildings or structures or the uses of land, buildings or structures, so that the spirit of the particular article shall be preserved, public safety secured and substantial justice done.

(4)

The ZBA may grant dimensional or other site plan related variances for special land uses, however the ZBA shall not have the power to reverse or modify the planning commission decision to approve or deny a special land use permit nor grant variances to any special land use standards or conditions of special land use approval.

(5)

The ZBA shall not have the authority to hear any appeal from a decision on an application for a planned unit development.

(6)

The ZBA shall have the authority to hear and decide on a request for a use variance.

The ZBA shall prescribe appropriate conditions and safeguards to carry out the requirements of this subsection and shall not grant any variance unless it shall have made a finding of fact based upon the evidence as presented to it in each specific case as specified below:

(1)

Dimensional variance. The ZBA may grant a dimensional variance only upon a finding that practical difficulties exist. A dimensional variance is a variance from any dimensional standard or requirement of this chapter, such as, but not limited to, a deviation from density, height, bulk, setback, or parking, landscaping and sign standards and requirements. A finding of practical difficulties shall require demonstration by the applicant of all of the following:

a.

Strict compliance with restrictions governing area, setback, frontage, height, bulk, density or other "non-use" matters will unreasonably prevent the owner from using the property for a permitted purpose or will be unnecessarily burdensome. The variance will do substantial justice to the applicant, as well as to other property owners.

b.

A lesser variance than that requested will not give substantial relief to the applicant and/or be consistent with justice to other property owners.

c.

The need for the variance is due to unique circumstances or conditions peculiar to the property and not generally applicable in the area or to other properties in the same zoning district such as exceptional narrowness, shallowness, shape, topography or area.

d.

The problem and resulting need for the variance has not been self-created by the applicant and/ or the applicant's predecessor may or may not be considered depending upon whether the practical difficulty would have existed regardless of the action.

e.

The variance will not alter the essential character of the area. In determining whether the effect the variance will have on the character of the area, the established type and pattern of land uses in the area and the natural characteristics of the site and surrounding area will be considered.

f.

The granting of the variance will not materially impair the intent and purpose of this chapter.

(2)

Use variance. The ZBA may grant a use variance only upon a finding that an unnecessary hardship exists. A use variance is a variance that permits a use that is otherwise not provided for in a zoning district. A finding of an unnecessary hardship shall require demonstration by the applicant of all of the following:

a.

The property cannot be reasonably used for any purpose permitted in the zoning district without the variance. There must be financial proof of the applicant's inability to realize any reasonable return; speculation or a qualitative assessment is inadequate.

b.

The need for the variance is due to unique circumstances peculiar to the property and not generally applicable in the area or to other properties in the same zoning district. The applicant must prove that there are certain features or conditions of the land that are not generally applicable throughout the zone and that these features make it impossible to earn a reasonable return without some adjustment. In those situations where the difficulty is shared by others, the board may find that relief should be accomplished by an amendment to the zoning ordinance, not a variance.

c.

The problem and resulting need for the variance has not been self-created by the applicant and/ or the applicant's predecessors.

d.

The variance will not alter the essential character of the area. In determining whether the effect the variance will have on the character of the area, the established type and pattern of land uses in the area and the natural characteristics of the site and surrounding area will be considered.

(a)

An appeal to the ZBA, as provided in section 102-314, jurisdiction, duties and responsibilities, shall be taken within such reasonable time as shall be prescribed by the ZBA by general rule, and if no general rule has been adopted, within 30 days of the decision, requirements or determination of an administrative official or body, by the filing with the zoning administrator and with the board of a notice of appeal specifying the grounds thereof. The zoning administrator shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken. Filing with the secretary of the ZBA the notice of appeal, or, in the absence of the secretary filing of the same with the chairman or presiding officer, shall satisfy the provision of this section that a copy of the notice of appeal be filed with the board.

(b)

An appeal stays all proceedings in furtherance of the action appealed from, unless the building official certifies to the ZBA after the notice of appeal shall have been filed with him that by reason of facts stated in the certificate, a stay would in his opinion cause imminent peril to life or property, in which case proceedings shall not be stayed other than by a restraining order which may be granted by the board or by the circuit court for the county, on application, on notice to the building official and on due cause shown.

(c)

The ZBA shall fix a reasonable time for the hearing of the appeal.

(d)

Any interested party may appear and be heard at the hearing in person or by an agent or attorney.

(e)

The ZBA shall not have the power to alter or change the zoning district classification of any property.

(a)

Matters coming before the ZBA shall be decided within a reasonable time.

(b)

An appeal from a decision of the ZBA shall be filed within whichever the following deadlines comes first:

(1)

Thirty days after the ZBA issues its decision in writing by the chairperson, if there is a chairperson, or signed by members of the ZBA, if there is no chairperson.

(2)

Twenty-one days after the ZBA approves the minutes of its decision.

(c)

The ZBA shall maintain a record if proceedings.

(d)

Decisions of the ZBA may be appealed by an aggrieved person to the circuit court.

No order of the ZBA permitting the erection or alteration of buildings shall be valid for a period longer than one year, unless a building permit for such erection or alteration is obtained within such period and such erection or alteration is commenced and proceeds to a completion in accordance with the terms of such permit.